투자중개업자의 금융상품 착오 주문 및 취소요건

Regarding the expression of intention due to an error, Article 109 of the Civil Code protects the representative by allowing it to be canceled when there is an error in an important part of the content of a legal act. However, if the error is not related to an important part of the content of the legal act or is due to the gross negligence of the representative, the right to cancel is restricted. In addition, if the other party knows of the error of the representative and uses it, the representative may cancel the expression of intention even if the error is due to the serious negligence of the representative. In this paper, the two major cases related to the expression of intention by mistake, the Mirae Asset Securities case(Supreme Court sentenced on November 27, 2014 2013da43794) and the Hanmaek Investment & Securities case(Supreme Court sentenced on April 27, 2023 2017da227264), were reviewed by comparing the basis and criteria for determining whether the other party knew the error and used it. Through the comparison of these two conflicting cases, the clear situation that the other party knew and used the error, and the narrow interpretation requiring specific facts were commonly applied. However, it may be difficult to conclude that this application was used after knowing the error of the representative and using it through algorithmic transactions due to the nature of the algorithmic transaction. As a result, it is necessary to consider the application of sufficiently predictable or expected criteria in using expressions of intention by error in consideration of the characteristics of various transaction methods such as various financial products and algorithmic transactions rather than the clear but narrow standards applied in the two cases.